Re HMP (CA): Defining the Outer Limits of the Open-Justice Principle in Post-Care Proceedings

Introduction

Re HMP ([2025] EWCA Civ 824) confronted the perennial tension between the press’ pursuit of transparency and the family courts’ duty to protect children’s privacy. The BBC sought access to the court file of concluded care proceedings relating to two children, as well as a partial relaxation of the statutory reporting restrictions in s.12 Administration of Justice Act 1960 (“AJA 1960”). Their objective, they said, was to inform wider investigative journalism into private fostering arrangements and local authority safeguarding. Lieven J granted the application, relying heavily on the Supreme Court’s seminal open-justice decision in Dring v Cape [2019] UKSC 38. The children’s guardian, supported by the second carer and the local authority, appealed.

The Court of Appeal (Sir Geoffrey Vos MR, Baker LJ and Andrews LJ) allowed the appeal, set aside Lieven J’s order and, crucially, drew a clear doctrinal line: the open-justice principle only justifies non-party access if the material sought sheds light on judicial decision-making or the workings of the court, not merely on the conduct of external public bodies.

Summary of the Judgment

The BBC’s purposes did not connect with open justice as articulated in Dring. They wished to examine local-authority oversight of private fostering, not the family court’s adjudication.
Accordingly, the Family Court lacked jurisdiction to entertain the disclosure request under CPR 5.4C / FPR 12.73, and the balancing exercise (Art 8 vs Art 10) was never triggered.
The Court of Appeal therefore granted the appeal on “ground 1” (misapplication of the open-justice principle) and found it unnecessary to consider proportionality or harm to the children (grounds 2 & 3).
Future applicants must demonstrate how access will advance open justice; investigative or watchdog motives aimed at bodies outside the judiciary are insufficient.

Detailed Analysis

a. Precedents Cited and Their Influence

Dring (Asbestos Victims Support) v Cape [2019] UKSC 38
The lodestar authority on non-party access. It established that (i) open justice applies to all courts, (ii) courts possess inherent jurisdiction to allow access beyond rules, and (iii) the applicant must show why access is sought and how it advances open justice. The Court of Appeal distilled two core purposes from Dring (paras 41–43): (1) public scrutiny of judicial decision-making; (2) public understanding of how the justice system works. Re HMP emphasises that these purposes are exhaustive for disclosure requests.
In Re S (Identification: Restrictions on Publication) [2004] UKHL 47
Provides the Art 8/Art 10 balancing framework (“ultimate balancing test”). Lieven J used it; the Court of Appeal held it never came into play because the threshold question—are we inside the open-justice gateway?—was answered “no.”
Newman v Southampton CC [2021] EWCA Civ 437
Cited for the proposition that open justice does not equate to carte blanche disclosure of confidential information unrelated to court scrutiny. Supports the restrictive reading applied in Re HMP.
Transparency Review & Family Court Reporting Pilot (President of the Family Division)
Lieven J relied on these policy developments to bolster transparency. The Court of Appeal held they cannot extend the legal principle laid down in Dring.

b. Legal Reasoning of the Court of Appeal

Jurisdictional Gateway Dring creates a two-stage test: (i) identify the purpose; (ii) show how access promotes open justice. The BBC’s amended application satisfied (i) (“to investigate private fostering”) but failed (ii): their enquiry was not about court processes or judicial reasoning.
Misdirection by the Judge Below Lieven J broadened “the Family Justice System” to include local authorities and schools. The appellate court labelled this “the central error”: open justice concerns only the court’s work.
Inapplicability of Balancing Exercise Because the open-justice rationale was not engaged, there was no foundation for weighing Articles 8 and 10—a proportionality calculus cannot cure absence of jurisdiction.
Alternative Avenues The court suggested FOIA 2000 or investigative journalism independent of the court file. It signalled cooperation yet drew a bright-line rule: care proceedings are not a “data-bank” for unrelated journalism.

c. Likely Impact of the Decision

Family Law Practice Judges will now conduct a stricter preliminary enquiry: “Are the requested documents sought to illuminate judicial decision-making?” If the answer is “no,” access is refused outright.
Media Strategy News organisations must tailor applications to the genuine oversight of court proceedings. Requests premised on broader social or systemic issues (e.g., local-authority failings, NHS conduct) should be pursued through FOI, public-interest reports, or statutory inquiries, not court-file fishing.
Procedural Clarity The decision plugs a perceived gap left after Dring by offering a negative precedent: what open justice is not. It will guide both the Family Division and civil courts when facing expansive disclosure requests.
Children’s Privacy By underscoring that children’s case files are not open-season, the ruling strengthens confidence among parties to care proceedings that confidential materials will remain protected unless transparency serves a direct judicial-scrutiny purpose.

Complex Concepts Simplified

Open-Justice Principle A centuries-old doctrine that court business should be open to public scrutiny to ensure fairness and confidence. It does not equate to universal public access; it is limited to materials necessary for understanding what the judge did and why.
Court File The collection of pleadings, witness statements, orders, and correspondence lodged with the court. Non-parties cannot see it unless a judge gives permission under CPR 5.4C (civil) or FPR 12.73 (family).
Private Fostering An arrangement (s.66 Children Act 1989) where a child is cared for by someone not a close relative for 28+ days. It is not sanctioned by a court but must be notified to the local authority, which has monitoring duties.
Article 8 vs Article 10 Art 8 ECHR protects private/family life; Art 10 protects freedom of expression. Courts often balance them when considering publication. In Re HMP, the balance was irrelevant once the open-justice gateway failed.
Reporting Restriction Order (RRO) An order prohibiting identification of children or sensitive details. Here an RRO remained to keep the appeal from becoming futile by revealing the very information in dispute.

Conclusion

Re HMP crystallises a refined rule: Non-party access to family-court documents is permissible only where the disclosure demonstrably furthers public scrutiny of the court’s own processes or judgments. Investigations into collateral public-interest topics—however worthy—fall outside the narrow scope of the open-justice principle and must seek alternative legal avenues. The Court of Appeal’s ruling thus fortifies protection of children’s privacy, provides clearer procedural signposts for the media, and offers courts a robust doctrinal tool to filter disclosure requests after Dring. As transparency initiatives and media interest in family justice expand, Re HMP stands as a sentinel case, ensuring that the laudable quest for openness does not eclipse the courts’ core duty to safeguard vulnerable parties and to restrict disclosure to what truly illuminates judicial work.